Australia: New modern award entitlement to unpaid family and domestic violence leave

On 1 August 2018, as part of its four yearly review of the modern awards, the Fair Work Commission (FWC) inserted a new term into all 122 modern awards and the Australian Government Industry Award providing modern award-covered employees with an entitlement to 5 days' unpaid family and domestic violence leave.¹

The new term, which is in identical terms across all modern awards, provides all employees covered by a modern award (including casuals) with access to 5 days of unpaid leave if:

• they are experiencing family and domestic violence, and
• they need to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

The model term provides that an employee may take the leave entitlement for reasons which may include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

What are the key terms of the new entitlement to family and domestic violence leave?

Family and domestic violence defined

The model term defines family and domestic violence as "violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful."

Who is entitled?

All employees (including casuals) covered by a modern award will be entitled to unpaid family and domestic violence leave.

At this stage, there is no similar entitlement for award or agreement free employees or a requirement for enterprise agreements to contain a term providing for family and domestic violence leave. However, the Federal Government has indicated that it intends to introduce legislation which will extend the entitlement to family and domestic violence leave to award and agreement-free employees under the Fair Work Act 2009 (Cth).

How does the entitlement accrue?

Unlike personal/carer's leave, the entitlement to family and domestic violence leave will not accrue progressively during each year of service, nor will it accumulate from year to year. Rather, employees covered by a modern award will be entitled to 5 days of unpaid leave at the commencement of each 12 month period. This means that at the commencement of each 12 month period, the entitlement will 'refresh' and any unused days from the previous 12 month period will 'expire'.

The entitlement is not pro-rated, so full-time, part-time and casual employees will each be entitled to the full 5 day entitlement. By way of example, a casual employee who works one day per week will have the full entitlement to 5 days unpaid family and domestic violence leave at the commencement of each 12 month period.

How does a period of unpaid family and domestic violence leave impact on service?

Time spent on unpaid family and domestic violence leave will not count toward an employee's length of service. However, a period of unpaid family and domestic violence leave will not break an employee's continuity of service.

What notice is required?

Employees are required to give their employers notice when taking unpaid family and domestic violence leave. The notice:

• must be given to the employer as soon as practicable (which may be a time after the leave has started)
• must advise the employer of the period, or expected period, of the leave.

There is no requirement for the notice to be provided by the employee in writing.

What evidence is required?

An employer is entitled to request an employee to provide evidence that would satisfy a reasonable person that the leave is taken for the purpose of the entitlement.

The new term suggests, by way of example, that such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

What must employers do to maintain privacy?

The new term requires employers to take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided, is treated confidentially, as far as it is reasonably practicable to do so.

However, the new term does not prevent an employer from disclosing information provided by an employee if the disclosure is required by law or is necessary to protect the life, health or safety of the employee or another person.

The model term suggests that employers should consult with employees regarding the handling of any information provided by the employee.

Employers should consider whether its existing procedures to protect the privacy of information provided in respect of personal/carer's leave is sufficient to satisfy the requirements under the new family and domestic violence leave term.

How does unpaid family and domestic violence leave interact with other leave entitlements?

Unlike the unpaid entitlement to parental/carer's leave, there is no requirement for employees to access any other paid leave entitlement (such as annual leave or personal/carer's leave) before accessing unpaid family and domestic violence leave under the new modern award term.

In reality, many employees may prefer to take an available paid leave entitlement before taking unpaid leave; however, as was acknowledged by the FWC, there is no express entitlement for an employee to take paid personal/carer's leave to deal with family and domestic violence. The FWC considered whether the modern awards required an amendment for employees to be able to access their paid personal/carer's leave entitlement for the purpose of dealing with family and domestic violence. However, the FWC have deferred further consideration of this issue until June 2021.

What does this mean for employers?

All employers who employ staff covered by a modern award are now required to provide 5 full days of unpaid family and domestic leave to award-covered employees. Employers should be crediting this amount to their award-covered employees' leave balances.

Employers are entitled to request evidence for taking family and domestic violence leave. However, employers should consider the processes and procedures in place to ensure that information provided by employees when taking family and domestic violence leave will be treated confidentially. Employers should consider implementing a policy, or amending any existing policy, to assist employees to access the unpaid family and domestic violence leave entitlement and to ensure that they have in place a procedure to ensure that they are compliant with the obligations imposed on employers under the new term set out above, including in respect of confidentiality.

Footnote

¹4 yearly review of modern awards – Family and Domestic Violence Leave [2018] FWCFB 3936

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.